Calcutta High Court (Appellete Side)

Soma Banerjee vs Subhrojyoti Banerjee on 6 August, 2009

Author:
Bhaskar Bhattacharya

Bench:
Bhaskar Bhattacharya

Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction

Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Prasenjit Mandal

F.A. No. 326 of 2007

Soma Banerjee
Versus
Subhrojyoti Banerjee

For the Appellant: Mr. Basudev Gayen,
Mr. Biswajit Dutta.

For the Respondent: Mr. Seikh Kamal Uddin,
Mr. Subhrojyoti Chakraborty,
Mr. Arun Kr. Mondal.

Heard on: 07.07.2009.

Judgment on: 5th August, 2009.

Bhaskar Bhattacharya, J.:

This first appeal is at the instance of a wife in a suit for divorce and is

directed against the judgment and decree dated 14th May, 2007, passed by the

Additional District Judge, Second Court, Hooghly, in Matrimonial Suit No.232 of

2001 thereby granting a decree for divorce on the ground of cruelty.

Being dissatisfied, the wife has come up with the present appeal.
The respondent before us filed in the Court of District Judge, Hooghly, a

suit being Matrimonial Suit No.232 of 2001 for restitution of conjugal rights

which was subsequently converted into a suit for divorce by way of amendment.

The case made out by the respondent as it appears from the amended

plaint may be summarized thus:

a) The parties were married according to Hindu rites and customs on 21st

February, 2000 and had been residing together as husband and wife.

b) The wife was at that point of time a student in graduate class in Serampore

College. Shortly after marriage, it was discovered that the wife was

extremely arrogant in her attitude and used to disrespect the husband and

his parents.

c) The wife started picking up quarrel with the husband and his parents and

even the request of the mother-in-law to have tiffin or meal was considered

by the wife as disturbance in matrimonial relationship between the parties.

d) At the time of dinner, the members of the family used to communicate with

each other about every day's affairs and the wife posed to be a

representative from the higher status of society. She very often refused to

participate in the dining table on the pretence that she did not develop

appetite. She delayed taking meals and her mother-in-law had to wait. It

so happened on several occasions that after long wait by the mother-in-

law, the wife divulged that she would not take meal on that night. The
morning after such night was full of embarrassment; the wife used to make

phone call to her father stating that no food was supplied to her in the

previous night and shortly thereafter, the father of the wife appeared with

ready food to feed her. This was a matter of humiliation for the whole

family.

e) The wife was to attend her college from the matrimonial home and was

ultramodern in her costume and exposure. The husband and the father-in-

law used to raise objection for her unconventional costumes and for that,

the wife flew into rage.

f) The wife did not care for the normal family requirements and discipline.

She did not return home after break of her college hours and again on

occasions, she used to return in the company of a group of boys and girls

and at times, with either a boy or any other girl. The companions of the

wife followed her to the bedroom and used to gossip for hours. The father

of the husband raised objection whenever the wife took any of her

boyfriends in the bedroom.

g) The wife used to visit her paternal house without giving even any

intimation.

h) She developed a peculiar habit of holding threat to the members of the

family of the husband that she would take resort to police machinery so

that she could put the husband and his parents beyond the prison bar. On

23rd April, 2001 the respondent left the matrimonial home against the will

of the husband and without the consent of the members and the family.

i) Immediately after filing of the suit for restitution of conjugal right by the

husband, the wife after receiving the summons of the suit, made a frivolous

complaint under
Section 498A
of the Indian Penal Code and a case was

registered being Chinsurah Police Station Case No.227 dated 5th October,

2001. The police on several occasions raided the house of the husband

and searched for the husband and his ailing parents who were indicted as

accused persons in the case. To evade arrest, the husband and his

parents were compelled to abscond. Ultimately, they got anticipatory bail

from the Court of law.

j) The father of the husband who was a patient of diabetes and having

waning eyesight, due to such cruel conduct of the wife became further ill

and passed away on 21st April, 2003. Ultimately, the learned S.D.J.M.,

Hooghly Sadar acquitted all the accused persons including the husband

from the unfounded, harassing and mala fide charges levelled by the wife

against them on 12th April, 2005. The aforesaid conduct amounted to

cruelty.

The suit was contested by the wife by filing written statement thereby

denying the material allegations made in the plaint and the defence of the

respondent may be summed up thus:

a) The father of the husband sought appropriate bride through advertisement

in the Anandabazar Patrika and the father of the wife responded to that

advertisement and after negotiation, the marriage was settled as the
demand of the father of the husband was within the limit of the father of

the wife.

b) At the time of the marriage, gold ornaments weighing around 25 bhories,

wooden cot, wooden almirah with glass, bedding, utensils, and numbers of

sarees as namaskari, and many other things were given as per demand of

the family of the husband.

c) Soon after the marriage, the parents of the husband did not hesitate to

express that they were not happy with the quality of goods given during

marriage and particularly, there was implied indication to give some more

quantity of ornament and furniture and the husband had also support in

such demand.

d) Thereafter, the mental cruelty upon the wife started, but the wife was not

frustrated immediately and being a soft and sober lady, she thought that

instead of informing all these demands to her parents, she would tackle all

the problem by her soft behaviour. She gladly and with smile accepted all

domestic works and practically, within a very short period she became the

maidservant of that family.

e) When in the night she expected some soft affection and love from her

husband, she used to experience mechanical sex exploitation and she

could feel that her husband was just using her as the instrument for sex

satisfaction and he never cared for the satisfaction of the wife.

f) The husband was only concerned with sex and after the marriage, the

husband took the wife to Darjeeling and there also there was no change in
the attitude of the husband. Practically there was no demand except sex

and the wife who had a sense of culture was gradually frustrated, as she

was neither getting any romance nor any satisfaction in the field of sex.

g) Similar was the situation when the wife was taken to Digha. The husband

started suspecting the wife and while he left for office, he first dropped the

wife at her college at Serampore, a college exclusively for the girls and then

left for his office. The husband used check up the regular routine of the

classes and everyday got ensured that the respondent came home

immediately after the classes were over and thus, even her movement was

monitored.

h) The wife being a student of girls' college had no scope to have friendship

with any boy and the allegation that sometimes she used to return from

college with even by a boyfriend was nothing but creation of some grounds

of the suit.

i) The husband used to take dinner with his parents regularly and the same

was served by the wife but never was she asked to sit with them for taking

dinner. The wife had to get up early in the morning to finish the household

works and the cooking for the entire family before she left for her college.

Though the wife did all the works always with smiling face, she was always

neglected by all the members of the family. She was provided with

minimum food which was given by the mother-in-law and that too, in a

separate place and never on the dinner table.

k) The wife was never given any opportunity to develop any intimacy with the

neighbours. She was never allowed to go outside the house alone. Even

when she had to remain alone in the house she was kept confined because

the mother-in-law locked the door from outside.

l) When the tolerance of the wife exceeded the limit, she asked her husband

as to why at least he was not protecting her from that torture, he became

furious and gave out that she would have to adjust all these and she was

threatened that they had many good lawyers and had tremendous

influence over police and hence she would be given proper lessons if she

did any excess.

m) In conspiracy with the husband and his mother, his father by force got

some signed blank papers. One day the wife met with a mild accident while

she was returning back to her matrimonial home and she disclosed such

fact to her mother-in-law. But thereafter, the father-in-law insisted the

wife on saying that she wanted to commit suicide. One day the wife was

alone in her matrimonial home for sometime and then she took a cassette

from the rack of cassette and put the same in the player and was surprised

to find that the father-in-law got the said conversation recorded in that

cassette. On 21st March, 2001 in the morning at the instance of the

parents-n-law the husband took the wife forcibly to her father's house and

left the wife at a place which is quite far off of her paternal home.

n) Thereafter, the parents of the wife advised her to wait for sometime and on

1st April, 2001 in the morning, the father of the wife took her to her
matrimonial home but the father-in-law practically drove them out with

filthy languages.

o) Thereafter, the wife contacted her husband over telephone and said that it

was entirely her fault and she committed that whatever be the torture, she

would tolerate and would not make any allegation and she requested her

husband to be kind enough to take her back. The husband, however, then

asked her to come near United Bank, Chinsurah at 5-30 p.m. on 15th April,

2001. The wife, accordingly, came and the husband took to her

matrimonial home. The usual torture however continued.

p) With the advice of his parents, the husband took to her to a doctor saying

that she needed some treatment and she was taken to the chamber of Dr.

Jayanta Basu but she noticed in the nameplate that the said doctor was a

psychiatrist and as such, she refused to go to the doctor. The husband

tried to procure a document to show that the wife had some psychiatric

problem which could be used to support a ground for divorce and as they

could not do that all of them became furious and on 23rd April, 2001 the

husband and his parents ill-treated the wife ans asked her to bring

Rs.20,000/- immediately. When the wife raised objection, she and her

parents were driven out and since then she compelled to live with her

parents. She first intended to seek the interference Women Protection Cell

at Chinsurah instead of lodging F.I.R. with the police but thereafter, she

was surprised to receive a notice of the suit for restitution of conjugal right

with all false averment and thereafter, the wife decided to lodge a complaint
against husband and his parents under
Section 498A
of the Indian Penal

Code. The contents of the complaint were correct. The wife subsequently,

by filing amendment prayed for restitution of conjugal rights.

At the time of hearing, the husband and his mother appeared as witness

for the husband while the wife alone gave evidence in opposing the claim.

As indicated earlier, the learned Trial Judge by the judgment and decree

impugned herein was pleased to decree the suit on the ground that the act of the

wife amounted to cruelty.

Being dissatisfied, the wife has come up with the present appeal.

After hearing the learned counsel for the parties and after going through

the materials on record, we find that the learned Trial Judge has granted decree

mainly on the ground that in the written statement the wife made deliberate false

allegations against the husband and his parents of demand of dowry and torture

for the purpose of getting the same which has been proved to be false in the

criminal proceedings initiated by the wife where the accused persons were all

acquitted. According to the learned Trial Judge such false allegations were

sufficient to pass a decree for divorce against the wife.

We have gone through the judgment of the criminal Court acquitting the

accused persons which has been marked as Exhibit in this proceeding for

divorce. It appears that on the complaint of the wife under
Section 498A
of the
Indian Penal Code, not only the husband but also his parents were indicted and

charge-sheeted. The father of the husband died during the pendency of the

proceedings and ultimately, on trial the accused persons were all acquitted as the

learned criminal Court disbelieved the evidence of the prosecution. It appears

that the husband is an employee of the Central Government. The wife although

subsequently by way of amendment of the written statement prayed for

restitution of conjugal rights, in our opinion, the learned Trial Judge rightly

turned down such prayer because it was apparent that she had no intention of

living with the husband as would appear from the fact that knowing well that her

husband would lose the job for the step she was going to take, she deliberately

made the false allegation against her husband and parents-in-law.

The aforesaid action on the part of the wife definitely comes within the

definition of cruelty within the meaning of the
Hindu Marriage Act
. We, therefore,

do not find any reason to disturb the aforesaid decree for divorce granted by the

learned Trial Judge.

As regards the decree of permanent alimony, we find that the learned Trial

Judge granted a decree for permanent alimony at the rate of Rs.2500/- a month.

Before us, the husband placed the latest salary certificate indicating that his

present monthly salary is Rs.19000/-. After taking into consideration the

changed circumstances as well as the conduct of the wife, we modify the decree

for permanent alimony by directing the husband to pay a onetime alimony of
Rs.3 lakh to the wife payable by the respondent to the wife within three months

from today. Till the period of three months from today or payment of Rs.3 lakh

whichever is earlier, the respondent will go on paying alimony at the rate he has

been paying. The decree for permanent alimony passed by us will be executable

after the expiry of three months from today.

The appeal is thus disposed of by affirming the decree for divorce and

modifying the decree of permanent alimony as indicated above.

In the facts and circumstances, there will be, however, no order as to

costs.

(Bhaskar Bhattacharya, J.)

I agree.

(Prasenjit Mandal, J.)